The Executive Decision not to enforce Federal immigration laws in order to give President Obama a badly needed political boost may run afoul of the soon-to-be-released Supreme Court decision in the Arizona Immigration Law case.

President Obama’s own Nightmare Dream Act

On June 15th, President Obama grandly announced that because the Congress had declined to pass a “Dream Act” granting immunity from prosecution to members of specific groups of illegal aliens, he had taken it upon himself to do it. Doing it just temporarily was fine for his purposes, because the election is less than five months away. Less than a year before, he had told a gathering of la Raza people about his unhappiness that he could not do what he just did, because of the laws and Constitution of the United States, which he had sworn to uphold, forbade him. Even so, he said that doing what he wanted to do was “very tempting.”

Having surrendered to political expediency temptation, President Obama on June 15th attempted to ensure that at least eight hundred thousand illegal aliens will be granted protection from deportation and other “rights” inconsistent with Federal law simply because President Obama so desires. As suggested below, the Supreme Court may well have something relevant to say when it decides, later this month, what to do about the Arizona immigration law appeal currently before it. There seems to be much anticipation that the Court will uphold the Arizona laws in major part and hence reverse a 9th Circuit decision holding that they had unlawfully trod in an area preempted by Federal law.

There was great joy in Obamaville on June 15th. Katherine Archuleta, National Political Director, Obama for America dispatched an e-mail. It said,

Thanks to our president, this nation’s immigration policy just became more fair and more just.

Effective immediately, the Department of Homeland Security is taking steps to ensure that young, undocumented immigrants who were brought here as children by their parents, and who have followed the law since then, will be able to request temporary relief from deportation proceedings — and will be allowed to apply for authorization to work in this country.

They’re a group that we’ve come to call the “Dreamers” — and today, the country they love is telling them they should be able to dream as big as they want.

For years, the President has called on Congress to make common-sense fixes to our broken immigration system. They haven’t. So he did.

. . . .

Congress still has time to pass the DREAM Act. And if they do, policies like today’s will no longer be necessary.

We are not giving up on this issue.

Stand up and support the President today — and help send the message that this first big step must be followed by a real, permanent solution from Congress:

This is not simply a matter “fairness” or even of the ordinary use of prosecutorial discretion, applied in individual cases, not to prosecute because the available evidence is weak or for other sufficient reasons. It establishes broad criteria for the exercise of discretion en masse to eight hundred thousand or more people of specified classes; thereby arguably discriminating against others. It also requires the Department of Homeland Security and other agencies to establish new procedures to implement the new policy. How soon will the new policy become effective?

The Secretary of Homeland Security has ordered Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) to do the following:

To those that appear qualified, ICE and CBP should immediately exercise their discretion to stop deportation, on an individual basis.

There is no application available yet. It will take at least at least 60 days to put the program into effect.

Do not trust unlicensed lawyers and Notarios. Be clear, there is nothing to file now.

ICE is directed to begin implementing this process within 60 days of the date of this memorandum.

ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.

President Obama, in his desire to recover from an electoral sinking feeling brought on by his stagnant and staggering economy, increasing perceptions that in international relations he is a wuss and other political circumstances not to his liking, attempted an end-run around the Congress for what can not fairly be seen as for other than immediate political purposes. Even if raw reelection politics had nothing to do with his decision, his actions still overstepped the constitutional separation of powers between the Legislative and Executive branches. To implement that end-run, the Secretary of Homeland Security, Immigration and Customs Enforcement (ICE) employees, U.S. Customs and Border Protection (CBP) employees and U.S. Citizenship and Immigration Services (USCIS) employees now have lots of new work to do — all in derogation of Federal immigration law as previously established by the Congress in legislation signed into law by a President. Perhaps the agencies have enough money created or saved from various legislative funding authorizations. If not, maybe they can find ways to tap into President Obama’s campaign funds; that would be “fair” and therefore consistent with the stated bases for President Obama’s unilateral action. It would also be consistent with that action because it would also be an illegal action.

When the Supreme Court decides this month what to do with the April 11, 2011 decision of the 9th Circuit in United States v. Arizona, whatever it says may well have implications for President Obama’s most recent usurpation. Since the Arizona immigration laws were passed in large part to enforce existing Federal immigration laws the Obama Administration had chosen not to enforce, the Court may have to touch upon some of the principles involved in President Obama’s June 15th announcement. Might his announcement have been in anticipation of, and an attempt to do an end run around, that decision? Governor Brewer thinks so. “Should the justices uphold the law as it was originally passed, Brewer says the president’s decision could undercut the bill’s effectiveness.” Possibly, but the Supreme Court may also undercut President Obama’s usurpation.

In United States v. Arizona, the Federal appellate court affirmed District Judge Bolton’s decision holding the then new Arizona immigration statutes unconstitutional on the ground of Federal preemption. I wrote here about the 9th Circuit decision and, perhaps of greater interest for present purposes, a rather stinging “concurring” opinion of Judge Bea. Reviewing that article written over a year ago made it quite easy to write this article.

Judge Bea’s was a great opinion, portions of which are quoted below. He challenged the Humpty Dumpty linguistics of the majority.

The majority has apparently mastered its Lewis Carroll:
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t –
till I tell you. I meant ‘there’s a nice knock-down argument for you!’”
“But ‘glory’ doesn’t mean ‘a nice knockdown argument,’ ” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful
tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Judge Bea then pointed out that the majority’s interpretation of legislative intent had attributed to the Congress the intent of bureaucrats later charged with enforcing Federal immigration laws. That would have required the Congress to have had some previously undiscovered capacity for prescience enabling it to divine and approve later executive department interpretations. Judge Bea quite correctly observed:

It is Congress’s intent we must value and apply, not the intent of the Executive Department, the Department of Justice, or the United States Immigration and Customs Enforcement. Moreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country. (Italic emphasis in original, bold emphasis added.)

He continued,

The majority also finds that state officers reporting illegal aliens to federal officers, Arizona would interfere with ICE’s [U.S. Immigration and Customs Enforcement] “priorities and strategies.” Maj. Op. at 4824. It is only by speaking in such important-sounding abstractions — “priorities and strategies” — that such an argument can be made palatable to the unquestioning. How can simply informing federal authorities of the presence of an illegal alien, which represents the full extent of Section 2(B)’s limited scope of state-federal interaction, possibly interfere with federal priorities and strategies — unless such priorities and strategies are to avoid learning of the presence of illegal aliens? What would we say to a fire station which told its community not to report fires because such information would interfere with the fire station’s “priorities and strategies” for detecting and extinguishing fires?

…

The majority’s arguments regarding how any of the state officers’ actions spelled out in Section 2(B) could interfere with federal immigration enforcement is consistent with only one premise: the complaining federal authorities do not want to enforce the immigration laws regarding the presence of illegal aliens, and do not want any help from the state of Arizona that would pressure federal officers to have to enforce those immigration laws. With respect, regardless what may be the intent of the Executive, I cannot accept this premise as accurately expressing the intent of Congress. (Italic emphasis added.)

Here is another point that seems pertinent: One of the bases upon which the 9th Circuit decided in favor of Federal preemption was that there was substantial foreign opposition to the then new Arizona laws. Much of that may well have been cultivated by statements of President Obama and Attorney General Holder disparaging the laws, even before they had bothered to read them. Now, of course, Mexican President Calderon (he correctly characterized it as an “unprecedented” move) and others are very happy with President Obama’s action. Perhaps they are as unfamiliar with the Constitution and laws of the United States as we are with theirs. Judge Bea wrote,

The majority fails to identify a federal foreign relation policy which establishes the United States must avoid “spillover effects,” if that term is meant to describe displeasure by foreign countries with the United States’ immigration policies. The majority would have us believe that Congress has provided the Executive with the power to veto any state law which happens to have some effect on foreign relations, as if Congress had not weighed that possible effect in enacting laws permitting state intervention in the immigration field. To the contrary, here Congress has established — through its enactment of statutes such as 8 U.S.C. §§ 1357(g)(10), 1373(c), and 1644 — a policy which encourages the free flow of immigration status information between federal and local governments. Arizona’s law embraces and furthers this federal policy; any negative effect on foreign relations caused by the free flow of immigration status information between Arizona and federal officials is due not to Arizona’s law, but to the laws of Congress. Second, the Executive’s desire to appease foreign governments’ complaints cannot override Congressionally mandated provisions — as to the free flow of immigration status information between states and federal authorities — on grounds of a claimed effect on foreign relations any more than could such a foreign relations claim override Congressional statues for (1) who qualifies to acquire residency in the United States, 8 U.S.C. § 1154, or (2) who qualifies to become a United States citizen, 8 U.S.C. § 1421 et seq. (Italic emphasis added)

Presumably, President Obama’s desire to appease his domestic constituency as well as foreign governments cannot override Congressionally mandated provisions either; which is what President Obama’s recent usurpation does.

Finally, the majority errs in finding that the threat of all 50 states layering their own immigration rules on top of federal law weighs in favor of preemption. In Buckman, the Supreme Court stated: “As a practical matter, complying with the FDA’s detailed regulatory regime in the shadow of 50 States’ tort regimes will dramatically increase the burdens facing potential applicants burdens not contemplated by Congress in enacting the FDCA and the MDA.” 531 U.S. at 350 (emphasis added). I fail to see how Congress could have failed to contemplate that states would make use of the very statutory framework that Congress itself enacted. Congress created the Law Enforcement Support Center “to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis.” Congress also obligated ICE to respond to all immigration status inquiries from state and local authorities. 8 U.S.C. § 1373(c). In light of this, all 50 states enacting laws for inquiring into the immigration status of suspected illegal aliens is desired by Congress, and weighs against preemption. (Emphasis in original.)

President Obama’s decision to himself obviate existing Federal laws on immigration and immigration enforcement presents the inside of the glove on the outside of which Judge Bea wrote. The Arizona case involved Federal preemption of State laws; President Obama’s executive decision involves Executive preemption of Federal laws that the Congress had intended to be enforced and that presidents had signed into law. Should the Supreme Court agree with Judge Bea, and hold that the Arizona laws furthered rather than unconstitutionally preempted Federal immigration law which the Executive branch had improperly used discretion — not granted it by the Congress — to obviate, it will be difficult to argue that Executive preemption of Congressional authority by refusing to enforce those same Federal laws is unobjectionable. On the other hand, should the Court hold that the Arizona law was preempted by Federal law and hence invalid, it will be difficult to argue with a straight face that the Executive can properly preempt those same Federal laws by doing precisely what he had said less than a year before he could not do without violating the laws and Constitution he had sworn to uphold. In either event, it may be quite difficult to argue that the reelection of a sitting President is a sufficiently important Federal goal to justify such a presidential action.

“I expect to bring a lawsuit against the president of the United States to suspend his executive order,” said Mr. King, in a telephone interview with The Des Moines Register, adding that he did not know when he would file the lawsuit and that a group of conservative lawyers are already organizing in support of him.

Although the Supreme Court’s decision in the Arizona immigration law case may provide quite useful points for Congressman King’s use, there is at least one big problem that transcends substance: standing. That is rather a convoluted requirement. Briefly explained here, it is

the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will imminently be) harmed by the law. Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality.

Although Mr. King is the vice chairman of the House Immigration Subcommittee, that may well not be deemed sufficient to give him any greater standing to seek judicial review of the matter than any private citizen would have on the ground that the harm done to him is no greater than that done to anyone else. No matter how the Supreme Court decides the Arizona case, it will be interesting to see how Mr. King attempts to show sufficient standing to argue the matter in court.

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About danmillerinpanama

I was graduated from Yale University in 1963 with a B.A. in economics and from the University of Virginia School of law, where I was the notes editor of the Virginia Law Review in 1966. Following four years of active duty with the Army JAG Corps, with two tours in Korea, I entered private practice in Washington, D.C. specializing in communications law. I retired in 1996 to sail with my wife, Jeanie, on our sailboat Namaste to and in the Caribbean. In 2002, we settled in the Republic of Panama and live in a very rural area up in the mountains.
I have contributed to Pajamas Media and Pajamas Tatler. In addition to my own blog, Dan Miller in Panama, I an an editor of Warsclerotic and contribute to China Daily Mail when I have something to write about North Korea.

About me

I was graduated from Yale University in 1963 with a B.A. in economics and from the University of Virginia School of law, where I was the notes editor of the Virginia Law Review in 1966. Following four years of active duty with the Army JAG Corps, with two tours in Korea, I entered private practice in Washington, D.C. specializing in communications law. I retired in 1996 to sail with my wife, Jeanie, on our sailboat Namaste to and in the Caribbean. In 2002, we settled in the Republic of Panama and live in a very rural area up in the mountains.

I have contributed to Pajamas Media and Pajamas Tatler. In addition to my own blog, Dan Miller in Panama, I an an editor of Warsclerotic and contribute to China Daily Mail when I have something to write about North Korea.